Tatum v. Commercial Bank & Trust Co. , 185 Ala. 249 ( 1914 )

ANDERSON, C. J—

Section 2940 of the Code of 1907, authorizes the levy of an attachment on real estate of the defendant whether he own a fee-simple or any less legal estate. That the will of defendant’s father gave him some legal estate in the land in question there can be no doubt. As to the nature and extent of same, and as to whether or not it is iiable to be divested by his failure to survive a certain period, or as to the extent of the title or interest a purchaser may acquire under an execution sale, is a question of very serious doubt and uncertainty and is one that we are not now called upon to decide. “Sufficient unto the day is the evil thereof.” Nor do we think that the interest of the defendant is so blended with and inseparable from that of the other devisees under the will that a severance would prove destructive of the purposes of the gift or trust so as to prevent the defendant’s right to alienate the property or to exempt it from being subjected to the payment of Ms debts. — Jones v. Reese, 65 Ala. 134; Rugely v. Robinson, 10 Ala. 702.

It is suggested by appellant’s counsel that, as the will of defendant’s father expressly and unconditionally directs a sale of the land at a certain time and a distribution of the proceeds, this would operate as an equitable conversion of the land into personal property. This contention may or may not be sound.- — Allen v. Watts, 98 Ala. 384, 11 South. 646; Flomerfelt v. Siglin, 155 Ala. 633, 47 South. 106, 130 Am. St. Rep. 67. In any event, this question can be determined only by a court of equity, as the circuit court, in this action at law, had ho authority to declare and enforce an equitable conversion, even if the will operated as such. The trial court did not err in declining to dissolve or vacate the attachment.

Pleas 7 and 9 may be duplex, and it may be that so much thereof as attempts to set up fraud, growing out of undue influence, is not sufficient, as the chief representation alleged as to Williamson the payee is that the defendant would not have to pay the note and that he (Williamson) would hold him harmless. This was no more than the legal opinion of Williamson that the defendant would not be liable and perhaps a guaranty by him that he would pay the notes, but these facts would not defeat a collection of the notes in the hands of a bona fide purchaser. These pleas, however, sufficiently showed no consideration between the defendant and the payee Williamson, and set up a complete' defense to the notes at the suit of Williamson or any one holding under him other than a bona fide purchaser, and there is no averment in the complaint that the plaintiff was a purchaser for value before maturity. Under our practice, however, the plaintiff should have set up this fact by way of replication to the pleas. — Slaughter v. First Nat-Bank, 109 Ala. 157, 19 South. 430; Ala. Bank v. Halsey, 109 Ala. 196, 19 South. 522. Nor do we understand that section 5014 of the Code of 1907 changes this well-established rule of pleading. It is also true that under section 4984 of the Code the accommodation maker is liable to a holder for value, notwithstanding the holder knew him to be only an accommodation party; but the defense as set up in pleas 7 and 9 was good and could only be met by a proper averment that the plaintiff was a purchaser for value before maturity, and said pleas were not subject to the grounds of demurrer interposed to same. Nor did the defendant get the full benefit of same under plea 8, to which the demurrer was overruled, as said plea was broader than pleas 7 and 9.

It might be that we could say that the rulings as to the pleas was error without injury, under the new rules, if the undisputed evidence showed that the plaintiff was a purchaser for value before maturity; but the evidence does not establish this fact, as the witness Westfield testified that he discounted the notes for cash and placed the proceeds in the plaintiff bank to Williamson’s credit. He does not testify to giving Williamson any money or of extinguishing or crediting' any existing debt due from Williamson to the bank. He does testify that these notes have never been paid and that the bank has other unpaid notes; but, from aught that appears, this money was in bank to the credit of Williamson when this suit was brought. A bank does not become a purchaser in due course, for value, by crediting a note upon payee’s account, if the credit is not absorbed by antecedent indebtedness or exhausted by subsequent withdrawals. — McKnight v. Parsons, 136 Iowa, 390, 113 N. W. 858, 22 L. R. A. (N. S.) 718, 25 Am. St. Rep. 265, 15 Ann. Cas. 665; Ala. Grocery Co. v. First Nat. Bank of Ensley, 158 Ala. 143, 48 South. 340, 132 Am. St. Rep. 18.

Moreover, tbe defendant was entitled to tbe general charge for tbe reason that tbe plaintiff took issue upon plea 10, wbicb ivas proven beyond dispute. It would ..not be a good defense, if tbe plaintiff was a purchaser for value of tbe note, but as long as tbe plea was in, and no replication was interposed to same, proof of same entitled tbe defendant to a verdict.

Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded.

Reversed and remanded.

Mayfield, Somerville, and de Graffenried, JJ., concur.